IN THE COMMONWEALTH COURT OF PENNSYLVANIA Daniel M. Linderman, Brandon : Gwynn, Meredith Gwynn, Michael : Donovan, Susan E. Homan, Gregory : E. Homan, Richard Trask, Kimberly : Anderson, James Anderson, Thomas : G. Lewis, III, Pauline Donna Lewis, : George E. Dearlove, Jean P. : Dearlove, Cora H. Sparling, Wayne C. : Sparling, and Steve Lustig : : v. : No. 228 C.D. 2013 : Argued: December 9, 2013 Board of Supervisors of New Garden : Township, and PR New Garden/ : Chesco Limited Partnership, PR New : Garden Limited Partnership and PR : New Garden Residential Limited : Partnership : : Appeal of: PR New Garden/Chesco : Limited Partnership, PR New Garden : Limited Partnership and PR New : Garden Residential Limited : Partnership : BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE BERNARD L. McGINLEY, Judge (P.) HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY PRESIDENT JUDGE PELLEGRINI FILED: January 3, 2014 PR New Garden/Chesco Limited Partnership (Landowner) appeals from an order of the Court of Common Pleas of Chester County sustaining the land use appeal of Daniel Linderman, et al. (Neighboring Property Owners) from a decision of the Board of Supervisors of New Garden Township (Supervisors) that granted
Landowner s request to be allowed to convert a proposed development to condominiums without going through the requisite subdivision application procedure. Finding no error, we affirm. The origins of this appeal date back to October 2001 when Landowner submitted a Conditional Use Application (Application) to the Supervisors which proposed improvements in the form of a large shopping center and a single-family residential community [on a 180-acre tract] on the south side of State Route 41 in New Garden Township (Township). (Supplemental Reproduced Record [S.R.R.] at 3b.) After numerous hearings, the Application was approved on April 23, 2003, subject to 97 conditions. Landowner appealed to the trial court, challenging 76 of the 97 conditions. In September 2007, Landowner and the Supervisors entered into a Settlement Agreement (Settlement Agreement), approved by the court, which included a plan for a proposed retail/commercial and residential development (Development), complete with elevations, landscape concepts, stormwater management plans, architectural renderings and design guidelines. 1 In early 2008, Landowner submitted plans for the first phase of the Development, including a retail center and convenience store, which the Supervisors approved in August 2008. In May 2011, Landowner and the Supervisors entered into an Amendment to the Settlement Agreement (Amendment) which modified provisions unrelated to the development of the retail space, including timing of 1 The trial court approved the Settlement Agreement on November 16, 2007, noting that it retained jurisdiction of this matter for enforcement purposes only. (Reproduced Record [R.R.] at 269a.) 2
payments and stream channel stabilization work and the footprint and facades of buildings. The Amendment also provided that any changes to the Development would not allow the [m]odification of any of the area and bulk requirements for the PREIT project, as set forth in the Settlement Agreement, including, but not limited to maximum density, maximum impervious coverage, setbacks and/or building heights. (R.R. at 281a.) None of the changes to the Settlement Agreement were appealed. Landowner then submitted an Amended Final Plan for Phase 1(A)(1) on August 3, 2011, which proposed to divide the Development property into condominium units which would be separately owned and conveyed. The plan was to be decided upon at the October 10, 2011 Supervisors meeting, but the subdivision request was withdrawn per the Supervisors request prior to the hearing and the plan was, therefore, approved without the subdivided units. Landowner subsequently filed a request to waive the subdivision application process necessary to create condominium units at the Development site. In its request, Landowner noted that [a] subdivision of each condominium unit would require compliance with the area and bulk regulations set forth under Section N.(1) [2] of the Settlement Agreement, 2 Section N.(1) of the Settlement Agreement provides, in relevant part: The following are the Dimensional Criteria which shall apply to the Proposed Development and which supersede all area, bulk and dimensional requirements of the Unified Development Zone and all other requirements of the Zoning Ordinance, and which shall supersede those provisions of the Township Subdivision and Land Development Ordinance (SALDO) which are inconsistent therewith: (1) The Retail Center and Town Center shall be governed by the following regulations: (Footnote continued on next page ) 3
which is unreasonable and impracticable. Those regulations never contemplated the creation of condominium units. Id. at 322a. Counsel for Neighboring Property Owners submitted written correspondence to the Supervisors outlining their concerns with the Development and seeking denial of Landowner s waiver request. Nonetheless, the Supervisors approved the waiver and a Revised Amended Final Subdivision Plan for Phase 1(A)(1) (Revised Plan) was subsequently approved by the Supervisors. Neighboring Property Owners appealed to the trial court, challenging the Supervisors grant of the waiver and the approval of the Revised Plan. Landowner then filed a motion to quash, contending that Neighboring Property Owners lacked standing to appeal the waiver because they did not intervene in the 2003 appeal and did not appeal the Supervisors 2007 approval of the Settlement Agreement, its 2008 approval of Landowner s final plan for Phase 1, or its October 2011 approval of the amended plan. (continued ) (R.R. at 119a-120a.) (a) Minimum lot size: 3 acres. (b) Minimum lot width at street line: 150 feet. (c) Minimum lot width at building line: 150 feet. (d) Minimum front yard: 75 feet. (e) Minimum side yard: 50 feet. (f) Minimum rear yard: 50 feet. (g) Maximum Building Height: 45 feet, inclusive of mechanical equipment which may be placed on the roof. (h) Maximum Building Coverage: 35%. (i) Maximum Lot Coverage: 65%. (j) Signage: Shall be in accordance with the Retail Center Design Guidelines and the Town Center Design Guidelines. 4
The trial court denied the motion to quash because, even though Neighboring Property Owners were not parties to the Settlement Agreement and had not sought to intervene in the proceedings that produced the Settlement Agreement, the condominium subdivision issue was not covered by the Settlement Agreement and was not raised until 2011 when Landowner first sought a subdivision application waiver. The trial court concluded that Neighboring Property Owners were persons aggrieved 3 for standing purposes because they own land near or adjacent to the Development and, therefore, have a direct interest, and their interest was immediate because the Development would impact the value of their homes and the quality of their right to enjoy their properties. It noted that its November 2007 order provided that the court only retained jurisdiction over the Development for enforcement purposes, and Neighboring Property Owners were seeking enforcement of provisions of the Settlement Agreement. The trial court denied Landowner s motion to quash. As to the substance of the appeal, the trial court reviewed the relevant provisions of the Settlement Agreement and said that the dimensional criteria were central and critical to the settlement of the appeal. (Trial Court Opinion dated January 18, 2013, at 17.) Noting that Landowner acknowledged that it could not comply with the dimensional requirements and that the condominiums would not appear different to a passing observer or neighboring property owner, the trial court held that the Revised Plan would still not comply with the Settlement Agreement and 3 Relying on this Court s decision in Miravich v. Township of Exeter, 6 A.3d 1076 (Pa. Cmwlth. 2010), appeal denied, Pa., 75 A.3d 1283 (2013), the trial court determined that in subdivision and land development appeals, because of the less stringent procedural protections before a board of supervisors, due process requires that the only applicable standing requirement is substantive, i.e., whether Protestants are persons aggrieved. (Trial Court Opinion dated January 18, 2013, at 6 (quoting Miravich, 6 A.3d at 1079)). 5
the Supervisors erred in approving the Revised Plan. While recognizing that the Settlement Agreement provided language permitting the Supervisors to waive other provisions of the Township s SALDO, the trial court found that the Supervisors lacked the authority to waive the subdivision application process for the condominiums because the Settlement Agreement failed to mention any waiver of a subdivision application requirement. 4 This appeal followed. 5 On appeal, Landowner argues Neighboring Property Owners do not have standing to challenge the Supervisors approval because they have no direct, immediate or substantial interest in the form of ownership of the Development and are not harmed by the Supervisors approval of the Amended Final Plan. It further contends that Neighboring Property Owners lack procedural standing to enforce the Settlement Agreement because they are not parties to the Settlement Agreement and never challenged the Settlement Agreement when it was created or amended. 4 The trial court also concluded that it found no direct or indirect support for the proposition that a land use settlement agreement may properly provide for the bypassing or elimination of the mandatory procedural requirements of the [Municipalities Planning Code (MPC), Act of July 31, 1968, P.L. 805, as amended, 53 P.S. 10101-11202,] and a township s SALDO. Id. at 22. It also denied Landowner s petition to require the posting of a bond. 5 Where a trial court takes no additional evidence, our scope of review is limited to determining whether the board abused its discretion or committed an error of law. North Chestnut Hill Neighbors v. Zoning Board of Adjustment of Philadelphia, 928 A.2d 418, 423 n.6 (Pa. Cmwlth. 2007). The board abuses its discretion only where its findings are not supported by substantial evidence. Id.; see also 2 Pa. C.S. 754(b). Substantial evidence is such relevant evidence as a reasonable person might consider sufficient to support a conclusion. North Chestnut Hill Neighbors, 928 A.2d at 423 n.6. An error of law is committed if a board erroneously interpreted or misapplied the law to the facts in a case. Board of Supervisors of Upper Southampton Township v. Zoning Hearing Board of Upper Southampton Township, 555 A.2d 256 (Pa. Cmwlth. 1989). 6
If there was not a Settlement Agreement, there would not be any argument that Neighboring Property Owners could not appeal a subdivision approval for the condominium plan because, as property owners with homes adjacent to or near the Development site, Neighboring Property Owners have a direct interest in the Development. Neighboring Property Owners interest is also substantial. As set forth by this Court in Larock v. Sugarloaf Township Zoning Hearing Board: [w]hen the property at issue is someone s home, the owner s right to protect the viability of his property is even more personal. The purchase of a home is often considered to be one of, if not the, most significant investments an individual can make during his lifetime. To deny an individual the right to protect his interest in the property he calls home would violate public policy. 740 A.2d 308, 312 (Pa. Cmwlth. 1999). Development near one s property will almost certainly bear some sort of effect on that property, whether from decreased property values, noise, pollution, traffic or a number of other factors. See id. Finally, Neighboring Property Owners interest is immediate because there is a causal nexus between the Development and the effect of the Neighboring Property Owners right to enjoy their properties. The question then is whether Neighboring Property Owners are precluded from challenging the Supervisors waiver of a subdivision plan that varies from the dimensional criteria set forth in the Settlement Agreement, which provides shall apply to the Proposed Development. (R.R. at 119a.) Settlement agreements have always been problematic in zoning cases, especially those that allow waiver, not just of discretionary matters but from 7
requirements in zoning ordinances or regulations, because those waivers are tantamount to an ad hoc amendment of those provisions. Nonetheless, we have held that where a party is aware of a proposed settlement, that party is obligated to intervene and appeal the purported illegality of the settlement. If it did not, the settlement will be binding on the parties that were aware of the litigation. T.H. Properties, L.P. v. Upper Salford Twp. Bd. of Sup rs, 970 A.2d 495 (Pa. Cmwlth. 2009). However, a party only is bound by the terms of a settlement agreement, not subsequent amendments to that agreement. In this appeal, we agree with the trial court that the issue is whether the Settlement Agreement provides for a waiver of the SALDO provisions, including the subdivision application, which makes it binding on Neighboring Property Owners. We also agree with the trial court that there is no language in the Settlement Agreement that deals with subdivision or that waives the procedural requirements of the MPC or SALDO that subdivision approval must be obtained before a property can be used as condominiums. 6 Since the Settlement Agreement contains an 6 A subdivision includes the division or redivision of a lot, tract or parcel of land by any means into two or more lots for the purpose, whether immediate or future, of. transfer of ownership or building. Section 107 of the MPC, 53 P.S. 10107. Division of a property into separate condominium units for the purpose of separate ownership constitutes a subdivision. Shaffer v. Zoning Hearing Board of Chanceford Township, 964 A.2d 23 (Pa. Cmwlth. 2008), aff d, 605 Pa. 267, 989 A.2d 5 (2010). While Landowner contends that Shaffer is inapplicable to this case because the condominium ownership will not result in any new boundary lines or changes, we ultimately held and Landowner has acknowledged that municipal consideration of a subdivision or land development plan is required in order to create a condominium and to convey a condominium unit. (R.R. at 321a.) Moreover, in the cited trial court case, [n]o complaint [was] made by the borough concerning physical compliance with the approved plans. Brookhaven Borough v. Iacobucci, 69 Pa. D.&C. 2d 190, 192 (1974). Therefore, that case is inapplicable here. 8
integration clause, 7 which expresses all of the parties negotiations, conversations, and agreements made prior to its execution, Yocca v. Pittsburgh Steelers Sports, Inc., 578 Pa. 479, 498, 854 A.2d 425, 436 (2004), 8 the authority to waive the requirement cannot be read into the Settlement Agreement as Landowner suggests. Landowner acknowledged that a subdivision of each unit would not be in compliance with the dimensional criteria set forth in the Settlement Agreement for which it sought the waiver, ignoring that the Settlement Agreement did not waive the requirement to get a subdivision approval for the condominiums. Because the Settlement Agreement does not waive the requirement for condominium subdivision approval, it was improperly approved. Accordingly, the order of the trial court is affirmed. DAN PELLEGRINI, President Judge 7 Section 16 of the Settlement Agreement provides, in relevant part, This Agreement constitutes the entire agreement among the parties hereto and supersedes all prior negotiations, understandings and agreements of any nature whatsoever with respect to the subject matter hereof. (R.R. at 154a.) 8 We need not address Landowner s argument that if it needed to obtain subdivision approval with regard to the Condominium Plan, (Appellant s Brief at 25), the board was permitted by the Settlement Agreement to approve the condominium plan because Landowner s contention that the Development was never meant to be developed by a single owner, given the multi-tenant nature of a shopping center and age-restricted residential development proposed. This argument is without merit because the Settlement Agreement refers to the Development s retail center as a multi-tenant center, which does not suggest more than single ownership with leasing of units. (R.R. at 113a (emphasis added).) Finally, Landowner said in its waiver request that the dimensional criteria required of each lot in the Development never contemplated the creation of condominium units. Id. at 322a. 9
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Daniel M. Linderman, Brandon : Gwynn, Meredith Gwynn, Michael : Donovan, Susan E. Homan, Gregory : E. Homan, Richard Trask, Kimberly : Anderson, James Anderson, Thomas : G. Lewis, III, Pauline Donna Lewis, : George E. Dearlove, Jean P. : Dearlove, Cora H. Sparling, Wayne C. : Sparling, and Steve Lustig : : v. : No. 228 C.D. 2013 : Board of Supervisors of New Garden : Township, and PR New Garden/ : Chesco Limited Partnership, PR New : Garden Limited Partnership and PR : New Garden Residential Limited : Partnership : : Appeal of: PR New Garden/Chesco : Limited Partnership, PR New Garden : Limited Partnership and PR New : Garden Residential Limited : Partnership : O R D E R AND NOW, this 3 rd day of January, 2014, the order of the Court of Common Pleas of Chester County, dated January 18, 2013, is affirmed. DAN PELLEGRINI, President Judge